Delhi District Court
Shri Suresh Kumar vs M/S Skypak Services Specialists Ltd on 5 August, 2010
IN THE COURT OFSH. SUKHDEV SINGH,ADJ/POLC-VII (EAST-DISTRICT), KARKARKOOMA COURTS, DELHI.
ID No. 53/2006Unique Case ID No. 02402C0167282006 Shri Suresh Kumar S/o Shri Rajeshwar Tiwari Through UPLF, 8/440, Triok Puri Delhi.
Versus M/s Skypak Services Specialists Ltd.
LB-35 Tolstoy House, 17 Tolstoy Marg, New Delhi M/s ESSEE Couriers Intra City Service L-16 357, Mahpalpur Extension New Delhi. .......Management Date of institution of the Suit : 20.02.2006 Date on which order was reserved : 05.08.2010 Date of decision : 05.08.2010 AWARD Workman has raised an Industrial Dispute against his illegal termination from the services and prayed for reinstatement with consequential benefits. 2 It is, inter alia, stated in the statement of claim that the Workman was appointed on the post of Courier Boy I.D No. 53/2006 Page1/10 on 25.7.1989, copy of the same has been annexed as Annexure-I. His services were appreciated and he was promoted to the post of Junior Operation Executive vide letter dated 10.7.2000, copy of the same has been annexed as Annexure-II. It is alleged that the Management was not providing the Workman Dearness Allowance (DA) and was trying to maintain the Minimum Wages by giving only HRA and TA in place of D.A. As a result, the Workman was being exploited in terms of his entitlement which had even monetary effect on his retirement benefits.
3 The Workman alongwith other Workmen in the Management formed a Union which was duly registered as per Annexure-III and five representatives of the Union were declared as Protected Workman as per Annexure-IV. Since the Workman was the active member of the Union from its registration, the Management got annoyed with him and issued him chargesheet as per Annexure-V. The Workman duly filed reply to the said charge, however, without considering his reply, the Management put him under suspension w.e.f 7.10.2003 and started giving suspension allowance.
4 It is further stated that the Management appointed an Enquiry Officer, to which the Workman protested. When the matter was raised before the Conciliation Officer, Hari Nagar, the Management stated that they had terminated the services of the Workman, however, I.D No. 53/2006 Page2/10 they did not disclose the date of termination. The Management stopped paying the suspension allowance w.e.f January,2005. The Management has not issued any termination till date in writing, however, they have terminated the services of the Management orally. Hence, the claim. 5 In the Written Statement, the Management / M/s Skypak Services Ltd has taken various pleas and stated that M/s Skypak Services Specialists Ltd and M/s ESSEE Courier Intra City services are different and separate units and there was no link between these two different organisations. They have further stated that the Management of M/s Skypak Services Specialists Ltd., neither interviewed the Workman nor appointed him. Other pleas of the Workman have been denied parawise and they have reiterated their stand.
6 In the replication, the Workman has controverted the pleas of the Management and has reasserted his own pleas.
7 On the pleadings of the parties, following issues were framed:
I Whether there is relationship of employee and employer between the parties ?
II Whether the Workman is entitled to
reinstatement with all consequential
benefits full back wages ?
III Relief.
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8 Arguments were not advanced by either of the
parties inspite of opportunities. Since the pleadings are
complete and evidence has also been led by respective parties, the case is decided on merits. I have gone through the material placed on record. My findings on the above issues are as follows:ISSUE No.1 & 2
9 Since both these issues are interlinked and evidence on them is same, they are taken up together. The onus to prove these issues lies upon parties. In support of this, the Workman has examined himself as WW1. He has deposed on affidavit Ex.WW.1/A and reiterated the pleas taken by him in his statement of claim. He has relied upon documents from Ex.WW.1/1 to Ex.WW.1/17 i.e; General terms and conditions of service/appointment, promotion letter, Certificate of Registration of Trade Union, letter related to Protected Workman, Chargesheet dated 7.10.2003, reply to the chargesheet, appointment letter issued by M/s Skypak Services Specialists Ltd, , list of witnesses, enquiry proceedings and report of the Labour Inspector. 10 In defence, the Management has examined Shri Manmeet Singh, Assistant Regional Manger, as MW1.
He has also deposed on affidavit Ex.MW.1/A. He has deposed in his testimony that Management No.1 had no concern with Management No.2. He was neither employed by I.D No. 53/2006 Page4/10 the Management nor given any appointment letter. Thus, he had no right to claim because the Workman was never employee of the Management.
11 Though none of the parties has argued the matter, from the testimony of Suresh Kumar WW-.1 and Shri Manmeet Singh, MW-1, it has to be seen whether there has been relationship of employer and employee between them or not. The stand taken by M/s Skypak Services Specialists Ltd ( Management No.1) in the Written Statement is that M/s Skypak Services Specialists Ltd and ESSEE Courier are different units and they have no concern or link with each other. However, Workman Suresh Kumar has taken the stand that firstly he was appointed by M/s Saico Enterprises, whose name was changed to M/s ESSEE Couriers, who also issued him appointment letter and later on, his services were transferred to M/s Skypak Services Specialists Ltd. 12 If the cross-examination of Workman Shri Suresh Kumar, WW1 is looked into, it is noticed that he has stated in his cross-examination that he was appointed in Saico Enterprises, whose name was changed to M/s ESSEE Couriers, with whom he worked till 4.7.2003. However, he has stated that he did not know as to when M/s ESSEE Couriers merged with M/s Skypak Services Specialists Ltd. He has also admitted that he has no document to show that M/s Skypak Services Specialists Ltd used to give him salary I.D No. 53/2006 Page5/10 as well as work.
13 No doubt, Workman Suresh Kumar, WW-1 has stated in his testimony that he has no document to show that he used to work with M/s Skypak Services Specialists Ltd , but if the document brought on record by him are looked into, it is noticed that the first letter got exhibited as Ex.WW.1/1 shows that he was appointed by M/s Saico Enterprises, Ex.WW.1/2 is a letter of appointment issued by M/s ESSEE Couriers showing his appointment as Junior Operations Executive w.e.f 10.7.2000 and Ex.WW.1/11 is a letter of appointment issued by M/s Skypak Services Specialists Ltd on 1.12.2004. Clause 8 of this letter Ex.WW.1/11 states that for the purposes of Grautity, his services rendered with M/s ESSEE Couriers from 1.1.1995, will be calculated. Clause 8 of Ex.WW.1/11 reads as under:
8.For the purpose of computation of Gratuity, your service shall be calculated from the date of joining with M/s ESSEE Couriers effective from 1.1.1995.
14 Thus from this Clause, it comes out that M/s ESSEE Couriers and M/s Skypak Services Specialists Ltd are one and the same Management. If both the Managements would have different entity, the question of giving benefit of service to the Workman for calculation of Gratuity would not have arisen.
15 Though Shri Manmeet Singh, MW-1, has I.D No. 53/2006 Page6/10 deposed in his affidavit Ex.MW.1/A that Management No.1 and Management No.2 have no concern at all and this witness has not been examined by Ld. Authorised Representative (A.R) for the Workman, but in the presence of documentary evidence on record Ex.WW.1/11, the version given by him cannot be accepted at all. Thus, the fact remains that the Management of M/s ESSEE Courier and M/s Skypak Services Specialists Ltd are one and same Management and the Workman was in their employment. Therefore, the relationship of employer and employee stands established.
16 The next question that arises for consideration is as to whether the termination of the Workman is illegal or not. If a look is made to the cross- examination of the Workman Suresh Kumar, WW1, except the questions in respect of relationship, no suggestions has been put with regard to termination. The Workman in his testimony has categorically stated that the Management has appointed an Enquiry Officer as per Ex.WW.1/8. Further, he has deposed that he protested to the appointment of Enquiry Officer. Not only this, he has also stated that Enquiry Officer did not complete the enquiry or submitted his report. The fact that the Workman has not been cross-examined on the point of termination; the Management has failed to put on record the report of the Enquiry Officer; has not spelt out anything in the testimony of Shri Manmeet Singh,MW1, and I.D No. 53/2006 Page7/10 silence of the Management on the point of enquiry has to be construed that the Management has not conducted any enquiry before terminating the services of the Workman. The fact that no enquiry has been conducted/completed before terminating the services of the Workman, the termination of the Workman becomes illegal and unjustified.
17 When the termination of the Workman turns out to be illegal, the question arises as to what relief the Workman is entitled to. From the facts which have come on record, it is noticed that the Management has appointed the Workman in the year 2004, though they have given the benefit of past service rendered with M/s ESSEE Couriers for the purposes of Gratuity. The Workman has been stopped payment of suspension allowance in the year 2005 and an enquiry was being conducted in the chargesheet issued in December,2003. If the service of the Workman is counted from December,2004, the same turns out to be for a year, if the termination is taken from the year 2005, when the Management stopped paying him suspension allowance. That being so, his service is of a short duration.
Not only this, the enquiry which was being conducted by the Management has been for the Misconduct committed by the Workman for participating in the strike, though these facts have not been proved by the Management, but the Court cannot lose its sight when it has I.D No. 53/2006 Page8/10 to consider the relief to be given to the Workman. Keeping in view the short duration of service and the Workman playing a leading role in the strike which has resulted into manhandling and loss to the company, better interest of the Workman as well as the Management will be served, if the Workman is not given reinstatement. Thus, taking into consideration the totality of the circumstances, I think that a lump sum amount of Rs. 1,25,000./- ( Rupees One Lakh Twenty Five Thousand ) towards his all claims. Therefore an award for an amount of Rs. 1,25,000./- is passed in favour of the Workman and against the Management which be paid by the management within a period of one month of the publication of the award, failing which interest at the rate of 9% p.a. (nine percent) would be payable by the management to the workman.
18 Award is passed in the above terms. Six copies of the award be sent to the appropriate government. File be consigned to record room.
19 Before parting with, it would not out of place to mention that the claim of Workman Suresh Kumar has not pleaded in a crystal clear terms. When the claim of the Workman is not crystal clear, the Written Statement filed on behalf of the Management is also in the same way. A bare reading of the Written Statement shows that the Management I.D No. 53/2006 Page9/10 has simply denied the claim. From filing of the claim to the conclusion, Ld. Authorised Representative (A.R) for the Workman as well as the Management has failed to bring true facts before the Court. No doubt, Ld. Authorised Representative (A.R) for the Workman as well as the Management have failed to bring true facts due to lack of expertise on their part, the Workman should not suffer on this account. Here, the role of the Courts assumes significance. Thus, in the absence of any assistance rendered by the Ld. Authorised Representative (A.R) for the parties, this Court has tried to search/bring out the truth, to impart justice to the Workman which is the goal of Jurisprudence: processal as well as procedural as much as substantive.
Announced in the open Court. (SUKHDEV SINGH) On 5.8.2010. Addl. Distt. & Sessions Judge, POLC-VII, KKD Courts, Delhi.
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